IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of The High Court of Solomon Islands (Brown J)	

Court File Number:	
Civil Appeal Case No.13 of 2017
(On Appeal from High Court Civil Case No. CAC  374 of 2012)       

Date of Hearing:
	
4 May 2018	

Date of Judgment:
	     
11 May 2018	

The Court:	
Goldsbrough P 
Hansen JA
Young JA

Parties:	
LYDIA YEO AND HYMIN YEO

-V-

STEVEN SETI IROMEA & JOHN SETI ROFETA IROMEA JNR.
	
ADVOCATES:

APPELLANT:

RESPONDENT:

B. Upwe

K. Kohata
D. Hou

KEY WORDS:	   

ExTempore/reserved:
	
reserved	

ALLOWED/DISMISSED
	
ALLOWED	

PAGES	
1- 8

1.	The Appellants in this appeal, claimants in the court below, were unsuccessful in an application for vacant possession of Fixed Term Estate (FTE) 192-007-165 as against Stephen Seti Iromea and John Seti Rofeta Iromea Jr. the Respondents to this appeal. The Respondents are father and son.

2.	The claim of the appellants is that they purchased from the respondents this property for $50,000 through an agreement to purchase with the respondents dated 20 December 2010 which resulted in the FTE being registered in their joint names in December 2011.

3.	In their defence the Respondents assert that John Seti Rofeta Iromea, as opposed to his father Stephen who agreed that he had sold his interest in the property to the Appellants, did not consent to the proposed sale, did not sign the relevant agreement for sale or transfer document. In a counterclaim the Respondents seek rectification of the Land Register to reflect ownership of the property in the names of the Appellants and the Respondent John Seti Rofeta Iromea as “tenants in common in equal shares”.

4.	A defence to the counterclaim was filed putting in issue the content of the claim. Whilst the counterclaim did not seek to join the Registrar of Titles as a party to the proceedings, nevertheless the Registrar through the Attorney General filed a defence to the counter claim.

5.	As the claim and counterclaim progress toward trial a statement of agreed facts and issues for determination was filed. In that document the agreed facts were expressed as:-

The Claimants/First Defendants are the joint registered owners of FTE 192-007-165 situate at Bench Creek, Honiara. and

Prior to the transfer to the Claimant/First Defendants, FTE 192-007-165 was jointly owned by the Defendant/Claimant.

6.	The issues for determination were set out as:-

Whether the Defendant John Seti Rofeta (Jnr) consented to the sale and transfer of FTE 192-007-165 to the Claimant/First Defendant?

Whether the Defendant/Claimant John Seti Rofeta signed the agreement for sale of Fixed Term Estate Parcel No 192-007-165 to the Claimant/First Defendant?

Whether the Defendant John Seti Rofeta (Jnr.) signed the transfer instrument?

Whether the transfer was registered in the names of the Claimant/First Defendant by mistake?

Whether the transfer was registered in the names of the Claimant/First Defendant by fraud?

7.	Evidence in the form of sworn statements was filed following direction orders. The scheduled hearing appears to have been changed several times prior to the actual trial requiring repeated orders for directions. Eventually the matter came to trial on 29 March 2017, the Court Book having first been ordered to be ready in the year 2014.

8.	Prior to trial both counsel filed notices to cross examine witnesses. On behalf of the Appellants a notice to cross examine had been filed relating to an earlier aborted hearing date and that notice was not, we were told, herewith in advance of the actual hearing. Counsel for the Respondents filed a notice to cross examine just a day or so before the hearing. That notice, held in the High Court trial file, has been crossed through and marked with the words “too late”. Similarly the notice to cross examine filed by the Appellants for an earlier hearing has been crossed through and endorsed “too late”.

9.	Thus the trial proceeded without any evidence being led through the witness box and without any cross examination being permitted, although it had been sought. It appears that through a failure to properly file the “Notice to Cross-examine Witnesses” referred to in the Solomon Islands Courts (Civil Procedure) Rules 2008 (the Rules) the right to cross examine at trial had been lost. There is no reference to any decision of the trial judge to disallow cross-examination other than the annotations to the said notices appearing within the High Court file. Equally there is no record of submissions, if any, made on the question.

10.	The Rules at Chapter 13 set out the circumstances in which sworn statements may be used at trial as follows:-

Use of sworn statement in proceedings 

13.6 A sworn statement, including any annexure, that is tendered in court or included in the bundle of agreed documents becomes evidence in the proceeding unless the court has ruled it inadmissible in whole or part - when that part that is inadmissible does not become evidence.
 
13.7 The sworn statement need not be read aloud during the trial unless the court orders, but before the sworn statement is tendered (unless no notice is given under rule 13.9) the witness shall be required to confirm at trial, on oath or affirmation, the truth of the sworn statement and may clarify any matter contained in it. 

13.8 A witness may be cross-examined and re-examined on the contents of the witness's sworn statement.
 
13.9 A party who wishes to cross-examine a witness must give the other party notice of this: 

(a)	at least 7 days before the trial; or
 
(b)	within another period ordered by the court.
 
13.10 Another party may require that the original of a document annexed to a sworn statement be produced in court and must give the other party notice of this: 

(a)	at least 7 days before the trial; or 

(b)	within another period ordered by the court.

11.	Counsel on both sides failed in their obligations to their clients and to the Court in this regard. Decisions had been made that cross-examination was necessary yet the relevant notices were not properly prepared and filed in time. 

12.	Elsewhere in the Rules at Chapter 14 dealing with sworn statements used other than at trial it is provided:-

Cross-examination 

14.35 A party may by notice require the attendance for cross-examination of a person making a sworn statement. 

14.36 A notice to attend must be made to the party filing or proposing to use the sworn statement, not later than a reasonable time before the hearing at which the sworn statement is proposed to be used. 

14.37 If the attendance of a person is required and they do not attend, their sworn statement may not be used without the leave of the court. 

14.38 If a person making a sworn statement is cross-examined, the party using the sworn statement may re-examine the person.

13.	The above provision makes it clear that less than seven days will suffice provided the parties can make the necessary arrangements. Rule 1.14 provides that a court may in the interests of justice dispense with compliance, or full compliance, with any of these rules at any time. Thus, the seven-day period in Rule 13 .9 could have been reduced or waived and arrangements made for those witnesses who had been required to attend for cross-examination. Such an order should have been made in preference to the present order effectively taking away the cross-examination right for the reasons set out below.

14.	Within the filed sworn statements there are portrayed two completely divergent scenarios, scenarios which cannot be reconciled without findings as to facts being made. On the one hand there is evidence of signatures on documents from the two first Respondents and, on the other, evidence that the younger of the two Respondents signing nothing but an agreement to vacate the property. The two Respondents assert forgery on the part of the Appellants.
 
15.	Such contested evidence which cannot be reconciled should not be admitted at trial as the basis on which a trial judge may find facts supporting a decision one way or another without cross-examination being permitted. The Rules have as their overriding objective the notion that they will enable the court to deal with cases justly with the minimum delay and expense. We would go further and says that this is a case where no order should have been made allowing the evidence to be admitted through sworn statements. 

16.	It appears to this Court that in this instance the Rules, at least Chapters 13 and 14, have been elevated to a status which was not intended. The effect of the application of the rule as to cross-examination has been to deprive the parties of their right to challenge the evidence and to deprive the court of the opportunity to hear the same evidence tested by that cross-examination. 

17.	That is not to deal with cases justly.  In the circumstances it is for the judge to determine how the rule is to be applied to meet the justice of the situation.  A strict application of the seven day rule might dictate an adjournment of the trial.  Any lesser time should only be applied after submissions and allowing for a reasonable time for practical arrangements to be made for attendance.  Quite how to apply the rule will depend on the circumstances in each case but the overall objective must remain that the application of the rule cannot deprive a party of the substantive right to cross examine.  After all, the first rule in the High Court (R13.4) on evidence at trial is oral: it is only when a judge orders departure from that rule that sworn statements may be relied upon.  R13.15.

18.	Perhaps noting the impossibility of determining fraud as alleged by the Respondents in their defence and counter claim on evidence untested by cross examination, the trial judge has made findings on what was before him going to what he identifies as mistake in the registration of title. Those identified mistakes are documents without appearing to have been stamped as duty paid, and documents not stamped with the seal of an authorised officer, neither of which were pleaded as mistakes by the parties.
 
19.	In the Appeal Book, by consent we were told at the hearing, appears the duly stamped version of the agreement for sale and therefore at this appeal that evidential point on registration falls away. As to the lack of a stamp by the Authorised Officer in the transfer deed we simply note no pleading referring to the same nor submission made and therefore question how any finding made in those circumstances can be upheld.

20.	As this matter must, in our view, be remitted to the High Court for a proper trial on the issues, we feel it would be unwise to comment further on the issues or evidence, other than to comment generally on the failure of counsel to plead issues on which they (now) seek to rely. 

21.	This appeal is allowed and the decision of the High Court to dismiss the claim and for rectification of the registration of FTE 192-007-165 in favour of the Appellants to be cancelled are both set aside. The matter is sent back to the High Court for trial. The order for costs in the High Court is also set aside. Each party shall bear their own costs in the High Court for the miscarried trial and we make no order for costs on this appeal. 

………………………………………………
Goldsbrough P

………………………………………………
Hansen JA

………………………………………………
Young JA